AN APPEAL TO REASON

Find out the court’s policy on court reporters. The clerk’s office should have a posted policy as to its local policy regarding when official court reporters are available and in which departments the services of court reporters are not available. If the services of a court reporter are not available, a party may arrange for one to serve as an official pro tempore reporter. (California Rules of Court, rule 2.956.)

It is your duty to make sure a court reporter will be present. “When counsel has reason to anticipate that what is said at a hearing may be pertinent to a subsequent appeal he has a duty to insure that a court reporter is present. (See, e.g., 1 Cal. Civil Procedure During Trial (Cont.Ed.Bar 1982) §§ 11.11-11.12.) Failure to attend to this duty can be tantamount to a waiver of the right to appeal.” (In re Christina P. (1985) 175 Cal.App.3d 115, 129.)

During trial, speak slowly and with clarity and precision. Trial is that rare spectator sport that not only contemplates an oral presentation but a possible subsequent written transcription of the proceedings. A meaningful record should be clear, leaving nothing to the imagination. While I can ask a trial attorney what was meant by a question or answer, the court of appeal is not in the same position. You cannot sit next to a justice and offer explanations when the language isn’t clear. You must speak with clarity and precision, and if the answer provided lacks clarity, then you must ask follow-up question to ensure the answer is clear.

Real an old trial transcript to understand how you and others speak during trial. As an exercise, find an old trial or law and motion transcript. Do you notice how real people speak in incomplete sentences and frequently use pronouns that can lead to confusion? Although it might sound redundant, avoid this or that as well as pronouns he, she, it, they, and them, when a more specific description may be provided. If the judge fails to complete a sentence or ruling, return to it as a follow-up question or summary before continuing on. I have experienced a number of interrupted rulings and because of the nature of the discussion, the judge never returns to complete the ruling. In particular, it is confusing when two names are discussed and then the thread continues with she, he, her or him.

Be precise when talking about exhibits. Start with the number and a description of the exhibit, and continue to refer to the exhibit by number or document throughout the questioning. If possible, refer to page and line. A pet peeve of mine is when attorneys talk about the next exhibit in line, or jump from exhibit to exhibit, and I can’t tell whether they are talking about the first, second, etc. in a series of exhibits.

If two people are speaking over each other, make sure the court reporter recorded a critical answer. If a witness answers a question while the attorney is still speaking, make sure the answer appears on the record.

Create a visual picture of the testimony. When you hear an answer, think about how it will read on paper. If you ask the witness how far away he or she was, and you receive an answer that says something like “from here to there,” try to get an estimate of the distance between the points. The same rule applies when the witness is pointing at something and then says “right here.” Give detailed descriptions of demonstrations or visual evidence. No one reading the transcript will know what you mean.