How to prepare winning record for successful appellate decision in your favour?

11. “Strike That!” doesn’t do anything.   Do you want to know a secret?  Saying “Strike that” doesn’t actually strike anything from the record.  When you examine the written record of your trial, that lousy question will stare right back at you, followed by “Strike that!”  (The only thing that phrase does is make you sound like a lawyer.) 

Even if the judge strikes an answer from the record and tells the jurors to disregard it, the words will remain permanently etched in the court record.  The court reporter can’t remove the language from the record.  Rather than saying “Strike that,” a better practice is to say, “I didn’t put that very well. Let me ask you a different question.”

12. No “uh huh” or “uh-uh’s.”  Demand verbal answers from your witness.  Most of us understand what “uh huh,” “uh uh,” and shakes or nods of the head mean because we see the body language our witness uses when answering the question.  By the time your case reaches the appellate level, however, it is reduced to a written record.  Those non-verbal gestures won't be transcribed.  Simply asking your witnesses to respond with a “Yes” or a “No” could save you from writing an appellate brief.  Don’t be afraid to interrupt and comment, “I’m sorry - the court reporter is only supposed to write down what you are saying, not what you are doing.  Rather than nodding your head, could you answer out loud with a ‘Yes’ or ‘No’, please?”  This is even more important during depositions and motion hearings, because it's difficult to impeach a witness based on “uh huh” or “uh uh” responses:

Lawyer: The light was red, wasn't it?
Witness: Huh uh.

Did the witness agree with the lawyer or not?  The lawyer had given this witness unlimited wiggle room.  The record could fairly support either an affirmative or a negative answer.  Spend the extra moment to clarify answers for the record, and you might save yourself hours of additional work.

13. Frisk your witness before they leave.  Almost every lawyer with a few years under their belt has a story like this one:

After the witness finishes testifying, he gathers his notes, stands up and leaves the deposition room.  Halfway through your next deposition, you need to refer to a document or a photograph that had previously been marked as “Defense F.”  You look through the papers on the table, turn your briefcase inside out, and have your opponent do the same, but no luck.  It's gone!  Where did it go?  A few frantic phone calls later, you connect with the witness, who sheepishly admits he accidentally took it with him.

Depending on whether it happens to your or your opponent, it can either be comical or terrifying.  Either way, you can avoid the problem by frisking your witness before they leave to ensure they haven't accidentally gathered up any of your exhibits.  

Of course you don't want your witnesses to leave with any exhibits, but make sure that you don’t take any exhibits, either.  Use your exhibit list to keep track of exhibits, and make sure that either the clerk or the court reporter has custody of everything before anybody leaves the courtroom.

14. Don’t ask the reporter to swear in a telephonic witness.  The court reporter doesn’t want to lose their Notary license.  They can't swear in a witness over the telephone because the witness needs to be in their presence before they can be sworn.  They need to ensure that the person making the statement is in fact who they say they are.  If you're taking a telephonic deposition, you need to have a court reporter at the witness's location, not yours.  To make the process even easier, remind your witness to bring a photographic form of identification with them to the deposition.

15. State your objections clearly.  If you mumble them or merely raise your hand, the record will reflect that you “indicated,” not that you objected.  The rules in a deposition aren't any different than they are in trial.  You need to put your opponent on notice that you're objecting, so that they can clarify things if necessary.  If you want to object, clearly state the word “Objection!” followed by your grounds.

16. Eliminate barriers between you and the court reporter.  Try to avoid any physical obstructions between you and the court reporter.  Many times, they supplement their listening by looking at your face and reading your lips.  Your record will be clearer if you stand up and speak over those boxes on your desk or if you move so the lectern doesn't impede your view of the reporter.

17. Don’t descend to your witness’s language level.  Just because your witness uses phrases like “Crib,” “Peeps,” or “Schnizzle-fanizzle” doesn't mean that you should use that language.  When you add up all of the money you've spent on education, your vocabulary is probably worth more than $100,000.  That means you have a better palette of words with which to paint verbal images.  Don't descend to your witness's vocabulary level.  Instead, translate their phrases, not only for the record, but so your jury understands, too. 

18. Clearly state what your exhibit is.  “Take a look at this,” isn’t very clear.  “I’m showing you a photograph which I have marked as State’s Exhibit #2” tells the record exactly what you’re talking about.  Remember that you’re not just talking to the people in the courtroom.  You’re talking to an appellate court, or creating a written record for impeachment use in trial.  To ensure your record has impeachment or evidentiary value, clearly identify the objects you’re discussing.

BONUS: Things that make you look bad on paper.  When your final transcript is littered with verbal clutter, you're going to appear disorganized at best, or at worst, downright incompetent.  One reporter, under condition of anonymity, told me, “I don’t clean you up unless I like you.”  That means the responsibility falls on your shoulders to eliminate the verbal clutter that diminishes your trial record.  Here are the most common things that cause you to look bad on paper:

• Verbal noise: “Ahh’s” and “um’s.”


• Verbal fillers: “Gotcha,” “you know…”
• Skimming: Mumbling as you read through caselaw or a statement: “Judge, the Jones case says, um…”
• Disjointed phrases: “It's just a quick...  hold on a minute...  I've got it right here...  motion for continuance...”
• Needless taglines: ex. saying “Right” or “Ok” after each witness's answer.

Hopefully, you'll apply all of these tips the next time you work with a court reporter.  Make a special effort to think how your words will appear on paper, and you'll create a record that not only persuades your jurors, but persuades the appellate court, too.

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