Appellate Insights

Trial testimony may be perfectly clear to everyone in the courtroom—but appellate judges weren’t in the courtroom.  Make sure to create a record that’s intelligible to someone reading it after-the-fact:

• When witnesses gesture, translate their gestures into words.  (Witness:  “It was this high.”  Counsel:  “You’re indicating about 5 feet off the ground?”)
• If an expert discusses a chart, lodge the chart with the court, and have the expert describe which part he or she is focused on instead of just pointing.
• When discussing jury instructions or verdict forms on the record, avoid statements like “We agree with this one.”   Instead:  “We agree with the version that defendants submitted on [date].”  This can be challenging when counsel and the court get into a rhythm, reviewing a long list of proposals.

►  The practical message:   Keep in mind how the transcript will come across to a stranger who was not in the courtroom—and do you best to make it a vivid picture!