Preserve the Record Below (if you plan to appeal -- and even if you are NOT planning to appeal!)

Well, here’s a very difficult – but vitally important lesson – for trial lawyers and the appellate lawyers who follow them: Be certain to properly preserve your record for appeal.

Currently, our firm is working on an extremely complicated appeal. Unfortunately, the client appeared pro se. Not surprisingly, the record is pitifully lacking of objections, proffers of proof, and other procedural errors. This makes it extremely difficult to write our brief on appeal.

We are considering adding an argument of “inadequate representation” to our list of issues on appeal. After all, our client is not an attorney, and thus our client was woefully unprepared to argue effectively.

This anonymous Lessons Learned story in the current edition of “Litigation Update” articulates our difficulty.

Making the Record

The American Bar Association Litigation Section

In one of my first trials, the judge seemed to have it in for me. I couldn’t catch a break. He overruled my every objection and seemed bent on making my life miserable. When he excluded a key piece of evidence, he made it clear that he did not even want to hear my objection or my offer of proof on the matter. He threatened me with sanctions if I opened my mouth one more time. Glowering down at me from the bench, he asked if I understood and all I could do was nod mutely. On appeal, I wanted to challenge the judge’s conduct and the improper exclusion of the evidence. Unfortunately, the transcript did not reflect just how poorly I had been treated or my desire to make an offer of proof. Looking over the transcript, it became clear that the judge had been careful to avoid being “on the record” for the worst of the transgressions. The discussions on the record made it look like his ruling excluding the evidence had gone largely unchallenged. Fearing the judge, I had committed the cardinal sin of failing to make a proper record for appeal. Lesson learned: You cannot let the threat of sanctions keep you from making a proper record. Had I been sanctioned for making the record, it would have created an additional issue for appeal and underscored to the Court of Appeals just how unreasonable the judge had been at trial.

http://www.abanet.org/litigation/litigationupdate/2006/november.html

Lesson learned here ...