Appellate Insights

May 11, 2017 Alana H. Rotter
Avoiding Record Holes On Appeal

Videotaped deposition excerpts can be helpful or even essential at trial.  But because court reporters are not legally required to transcribe them, they can leave holes in the appellate record and a video clip won’t count as “substantial evidence” on appeal if the appellate court can’t tell what was in it.

To ensure that the appellate court knows what the jury heard and saw, trial counsel should adhere closely to California Rule of Court 2.1040:

  1. Before playing the video, lodge the deposition transcript with the trial court and specify on the record where the excerpt can be found (page and line numbers). If you’re playing multiple excerpts, serve and file a list of all page-line designations.
  2. After playing the video:  Serve and file the pages of the transcript covering the testimony that was shown, marking the pages to identify the relevant portion.
  3. As an alternative to point 2, you can ask the reporter whether he/she is willing to transcribe the video as it plays.

►  The practical message:  To put your strongest case before the appellate court, either have the reporter transcribe the clips as they’re played, or provide your own transcript indicating exactly what was played.