Nearly every talk I have ever seen on preserving a record on appeal is remarkably boring. Next week, I am giving such a talk at a continuing legal education seminar in Atlanta to a group of DUI attorneys. In an effort not to be boring, I have given some thought to why a topic so vital is also a topic that is so boring. Here's my conclusion. Every talk on the topic launches right into the law. After a few minutes of being told that you need to object and file motions, the topic begins sounding irrelevant. The reason is that there are some basic psychological issues at play that should be addressed in any discussion of preserving a record for appeal.
To demonstrate the point, think of the last time you were at trial and a situation arose where you failed to preserve the record. A witness was on the stand testifying. The prosecutor was up asking a question. The question was improper, and you see that the answer is about to be equally as improper. The judge has already demonstrated that he is in a bad mood. Perhaps he said something abrupt to a juror who came in five minutes late. The microphones didn't work. A dvd didn't play. Somebody in the audience smirked. You know it's a bad day. So, the improper question is asked, and the really incriminating and improper answer is on its way. Meanwhile, you have this internal mental conversation: "I think that's wrong, but I'm not sure what's legally wrong with it. Man, that judge is in a bad mood today. Maybe it won't be all that bad. Maybe the witness is not going to say what I think he is about to say anyhow. I think I'm probably winning. I don't want to look dumb here. I think I can win anyway. What was the question, oh wait. Well, he said it already."
I read many transcripts, and I think that if they came with a transcript of the trial attorney's thoughts, they would read something like that. Really, though, if transcripts came with a deep psychological, Dr. Freud widget, they would read like this, "I'm really afraid I will look dumb. I am afraid this judge is going to humiliate me in front of my client, this jury, and everyone in this room. I am afraid that I will be shown not to be very good at this. If I just sit here, I don't have to worry about being judged." Fear is the real reason records are not being preserved for appeal. There may be other reasons, but I think that fear is the primary thing. So, in this blog post, and in my talk next week, I want to discuss how to move past the fear and to incorporate a few practices to work with the fear to make objection, get rulings, and to give appellate counsel (whether appellate counsel is you or someone else) some tools on appeal.
- Name the fear -- You don't have to tell your client or anyone else for that matter. Name it to yourself on paper preferably but at least out loud. In words of that great legal scholar, Yoda, "Named must your fear be before banish it you can." At the heart of the objections you don't make, the motions you don't file, and the mistrial for which you don't move is the fear of being judged and being found inadequate. In any normal trial situation, these dynamics are at play. Add to the mix a tyrannical or bullying judge, an unpopular client, or a difficult cause or case, and the situation is even more frightening. Ever since law school, you have been trained to pretend the fear of being judged is no longer there. It started out when you had to play it cool in some of the more uncomfortable moments of Socratic method Hell, when talking to classmates about grades, and things like that. It continues when you try to act fearless so that your client will feel comfortable enough with you to hire you or to keep you on. Perhaps there was a bullying parent or teacher when you were growing up who has morphed into the tyrant with the robe or the bully for the state who is not playing by the rules. Maybe, in your mind, making this objection means no more good plea offers for deserving clients who can't go to trial. Maybe nobody will sit with you at the next bar meeting. Maybe you will get verbally beaten up right there in front of God and everybody. In such situations, you don't object. Even worse, the creative side of your brain that helps you think about the law in an innovative way, that helps you come up with fun legal points, the part that helps you spot the issues is being shut down by the critical side of the brain. At a more primal level, the judge staring at you from on high is the African lion standing before you on the plains about a million years ago ready to attack. If you aren't aware of these psychological dynamics, your brain won't be free to even know to object. Write down the fear. Know it is there.
- Think through the objections before trial -- As you read the discovery and develop trial strategy, it will become clear what things you don't want said about your client or what evidence you would like to keep out of the trial. Write a list of that evidence on a whiteboard or post-it notes and put them up. Go over them with your client or a helpful colleague. Think up ways you could possible keep the evidence or testimony out. Even if you think your challenge won't work, make the challenge (as long is it is not ridiculously frivolous). Brainstorm ways that the evidence might not be admissible. Let the brain run non-stop. Don't let the critical side tell you it won't work. Just list, list, list. When you have generated the list, then turn the critical side on and look for caselaw. What survives can be your objections well thought out in the privacy of your own office discussed with friendly staff, family or colleagues.
- Take the Bully's audience away -- File your objections as a motion in limine and set them down on a motions calendar where no jurors will be and where your judge doesn't have an audience. It takes away much of his incentive to bully you and guarantees you at worst that he'll just say "overruled," and an objection overruled is an appellate lawyer's best friend.
- Be Very Nice / Sheepish if You Can -- A judge still has the power to try to show you up, to show you he's the center of attention, or that he is boss. There is nothing you can do to prevent it. So, don't yell back. Don't roll your eyes. Just hang in there, make your objection, and nicely ask if you are being overruled. To quote the Old Testament Proverb, "a kind voice turns away wrath." In fact, jurors will sometimes sympathize with you in such situations. The nicer you are the bigger bully he seems. Ask any lawyer why they hate trying a case against a pro se opponent, and they will tell you that the sympathy factor can quickly go to an underdog.
- Make sure you are getting ruling and not pseudo rulings -- Sustained, overruled, denied, granted, I won't allow it, I will allow it, are ruling words. "Move along counselor," "Ask your next question," "I note your objection," are manipulative phrases masquerading as rulings. Make sure you sheepishly (see 4 above) ask for rulings when you get fake rulings.
There's a whole body of law on how to preserve a record, but before you go there spend some time with your fear and learning ways around or through it to preserve the best record for appeal.