“Creating a Winning Record
Think back to your last deposition or court hearing. Did every word you said actually make it into the record? Will the transcript of the deposition persuade the jurors during trial? Will your trial record withstand appellate attacks?
Trial lawyers know that it's not enough to win the case at the trial level. You also need to win the case on appeal. A key ingredient in that winning recipe is a clear trial record. In this series, you're going to discover the secrets of working with court reporters to create a winning record.
Please note that I didn't come up with these ideas on my own. If you want to learn anything, you should talk to the experts, and that's exactly what I did. Not long ago, I was sitting with a court reporter, waiting for the deponent to arrive. The deposition had been scheduled for 3:00 PM, but it was almost 3:15 PM, and the witness still had not arrived. That's not unusual in criminal cases, where subpoenas are often treated more like party invitations (“Maybe I'll attend, maybe not. It depends on what else I've got planned that day...”) than orders of the court. Anyway, while we were waiting, a second court reporter (whose deponent had also failed to appear) poked her head into the room.
Before long, the three of us started compiling a list of the most common mistakes lawyers make when working with court reporters. Over the next few weeks, almost a dozen other court reporters added their input to the list. They not only told me all of the things lawyers do that contribute to a confusing record, but they also revealed techniques for avoiding the problems and ensuring a clear appellate record.
Remember, your goals and the court reporter's goals are closely aligned. You both want to ensure a clean, clear record that is upheld on appeal. Here are the tips they shared to help you achieve that goal:
1. Create a vocabulary list. Creating a clean record starts before you go to court. If you want to ensure a clear record (and make friends with the court reporter), type up a list of your witnesses’ names, as well as any unusual terms that the reporter may have difficulty spelling. Consider including medical terms, street names, case citations, and numbers. If you spell it out in advance, you probably won't have any troubles during trial (and you won't get interrupted by a reporter asking for clarification, either).
2. Ask the witness to spell any unusual names or terms. If you've given the court reporter a copy of your vocabulary list, you won't need to spell many names, but you still may want to clarify things. If an unexpected vocabulary word arises, ask your witness to spell the name aloud. Even better, you might want to spell it yourself, then ask for confirmation from the witness (“That's spelled 'L-Y-N-Y-R-D S-K-Y-N-Y-R-D,' right?”)
3. Stop talking over one another. When you interrupt the other attorney, the judge, or a witness, your record will look like it's been run through a blender:
Attorney: Who ordered the Code Red?
Witness: You want the truth?
Attorney: Yes, that's what I've been ---
Witness: You want to know who ---
Attorney: --- trying to get from ---
Witness: --- ordered the Code Red? You can't ---
Attorney: --- you this entire time, ---
Witness: --- handle ---
Attorney: --- but you've been ---
Witness: --- the truth!
Attorney: --- stonewalling me all day!
Although this exchange may have been easily understood when it was spoken aloud in court, your transcript is going to be difficult, if not impossible, to decipher later on. Keep in mind that many times, court reporters may only hear the loudest voice in the room. If you're interrupting a witness, you may be drowning out valuable impeachment material.
Not every interruption is intentional. Many times, nervous witnesses stammer in the middle of their answers. You think that the witness is done, and jump in with your next question, only to have the witness start talking at the same time. To avoid these problems, wait for the witness to finish before you ask your next question. If you pause for one second after they finish, you shouldn't ever talk over the witness.
4. Describe the action. In court, the presentation was fantastic. The prosecutor was trying a DUI case, and he asked the police officer to demonstrate the Field Sobriety Tests. The officer showed the jury how the defendant stumbled and nearly fell down, then demonstrated that the defendant performed the “Chicken Dance” instead of walking in a straight line. The jurors laughed until tears rolled down their cheeks. One of them said, “Jeez that guy was wasted - I’m ready to vote guilty now!” Unfortunately, that demonstration never made it into the record because the prosecutor didn't describe what was happening.
The first time I learned this lesson was during a read-back of testimony in a jury trial. The presentation during trial had been riveting, but during the read-back, none of the non-verbal actions made it into the record, so it was a very dry recitation. Anytime you use an in-court demonstration, make sure that it goes into the record by describing the activities the appellate court won’t see. For example, while the police officer demonstrates how the defendant performed during a field sobriety test, you could say, “You are now hopping up and down on one foot, your hands are tucked into your armpits, and you are flapping your arms like a chicken’s wings.” Now it’s “on the record” and the appellate panel will be able to “see” it. Also, if the jury asks to hear the testimony again, they’ll get to re-experience your courtroom demonstration.
5. Don't call the court reporter 10 minutes before you need one. Several of the court reporters I spoke with commented that some attorneys didn't call to reserve a court reporter until the last possible moment. Some attorneys waited even longer - waiting until everyone else was assembled before realizing they'd neglected to request a court reporter. While every reporter strives to be professional, it's difficult for them to be at their best when they're called upon at the last moment and forced to rush madly to the interview or court hearing. The more notice you give them, the better prepared they will be.
6. Slow down. A good court reporter can comfortably transcribe up to 220 words per minute. But when you get excited and have gusts of 300+ words per minute, you can't expect them to keep up. When you or your witnesses speak that fast, the court reporter must interrupt the flow of your presentation and ask you to slow down or repeat a phrase. To ensure you're keeping a proper pace, periodically steal a glance at the court reporter. If you see steam rising out of her ears or from her stenographic machine - SLOW DOWN! If you know you're prone to speaking quickly, write the words “SLOW DOWN” on a sheet of paper and place it on the lectern. If you have a good relationship with your court reporter, give them permission to (politely) interrupt you when you start speaking too fast. Court reporters are trained to listen. If they can't keep up with your pace, you can bet that the jurors can't keep up with you, either.
(Editor's note: This is definitely one of those situations where I'm asking you to do as I say, and not as I do. One court reporter chastised me for reaching a gust of over 480 words a minute. Yikes!)
7. Be specific. Read this sentence aloud and see if you can properly interpret it: “Huey, Dewey, and Louie were watching a play with Donald. Then he jumped out of his seat, yelled, 'Sic semper fidelis,' and threw a tomato at the actors.”
Here's your $64,000 question: Who threw the tomato?
In court or in the depositions, it might be apparent who threw it, but in your record, you should avoid generic pronouns and use specific language to describe what happened. Don't overdo it, but make sure you know who you're talking about. When you hear your witness referring to someone as “he” or “she,” interject occasionally to clarify:
- “Who threw the tomato?”
- “When you say 'he,' are you referring to Donald?”
- “To clarify for the record, it was Donald who threw the tomato, right?”
8. Look up and speak for the record. One of the less obvious tips the court reporters shared was about how your posture affects your record. When you read case citations or quote extensively from caselaw, you probably have a tendency to talk into the piece of paper or down to the paper on your desk. When you look at your papers, rather than looking up at the judge or the person you want to persuade, your voice comes out mumbled, you speak too fast to be understood, you don’t pronounce each word individually, and your record comes out garbled. To create a better record, stand up straight, minimize your dependence on your notes, and look at the person you want to persuade.
9. Bring copies. If you're going to quote extensively from caselaw, bring a copy of the case for the court reporter. As mentioned above, you tend to speak faster when you're reading from a case, so you increase the chances of confusion or mistake. Giving the court reporter a copy of what you're reading will guarantee that the record accurately reflects what you said. If you can bring a spare copy of the jury instructions, too, you'll quickly make friends with all of the court reporters in your courthouse.
10. Say your name clearly. You're probably not as famous as you think you are. If you walk into the courtroom and you don’t know the court reporter, the court reporter probably doesn’t know you, either. Even if you do, it's a good practice to announce yourself, your firm’s name, and who you represent for the record. (Unless your name is “Jim Smith,” you might want to spell your name, too.) Before you leave the courtroom, make sure you hand the reporter your business card. That way, if the court reporter needs to contact you for clarification or to ask if you need a transcript, they'll know who you are and how to reach you.
source; www.TrialTheater.com
No comments:
Post a Comment