May 29th, 2011 , 12:28 pm
A few people have asked about when my new book, An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial, is coming out. Well, after much blood, sweat, and tears, the book is now being sent off to the printer and with much luck (and maybe a few prayers), it will be ready at the beginning of July. At least you will have a book to take to the beach or on vacation. (Okay, so I am joking, I think.)
I just read a new case from the 4/3 entitled Moody v. Starr Surgical Co., 2011 Cal.App. LEXIS 623, in which the trial court made a ruling at a sidebar conference about not going into a specific area of questioning. When the attorney did so, he was sanctioned in the sum of $1,500 pursuant to Code of Civil Procedure section 177.5.
In the opinion, the reviewing court noted that the trial was a week beyond its estimated length when the problem arose and there were “frequent sidebar conferences. After several weeks of trial, the court stopped placing the sidebar conferences on the court reporter’s record, and counsel was told if someone wanted something on the record, they could do so ‘on their own time’ when the jury was gone. While the original order was not recorded by the court reporter, the record on appeal is sufficient for review.” (Opn., pg. 6.)
Whenever you engage in a sidebar conference, especially where there is a ruling from the trial court, it is best to put it on the record. As an alternative, you may want to summarize and confirm what was said at a later time. Here, it seems that when the court inquired about the attorney’s disobedience, enough was said at that time to fill in the omission of not having the original ruling on record. In addition, the court was not denying the right to have the gist of the conferences reported; it was being sensitive to the mood of the jury. It wouldn’t be a bad idea for the attorneys also to be sensitive to the jury’s “restlessness.”