Columns

Protect the record

January 2022

by Lawrence J. Acker | Michigan Bar Journal

“The law is the only profession which records its mistakes carefully, exactly as they occurred, and yet does not identify them as mistakes.”¹

The concept of learning how to “protect the record” is one repeated in a variety of vernacular expressions:

“If it is not on the record, it did not happen.”
“If the judge is going to make an adverse ruling, make her do it on the record.”

Considered in a negative context, the message from these expressions is cautionary. As an active trial lawyer, I have learned how to not only protect the record to avoid unsatisfactory outcomes but, importantly, to protect the record to enhance my client’s potentially favorable outcomes.

IN-CAMERA CONFERENCES

It is common for trial judges to conduct conferences in chambers or at sidebar. This type of conference is not reported on the record because it has taken place on an informal basis or because the lawyer has been attempting to confer with the judge without jury participation. Regardless of circumstances, disciplined trial judges will ask the court reporter to participate in the conferences, and those judges will give the attorney on that same day the opportunity to present a subsequent record of the discussions during the sidebar conference.

It is essential to place on the record the substantive argument made in chambers, the court’s ruling, and any matters relevant to what occurred. This takes discipline. The judge is understandably anxious to resume witness testimony, respectful of jurors’ time, and mindful of the court’s caseload. Preserve all topics that were discussed in chambers, any written submissions, and the resolution. If witness testimony was limited or if proofs were excluded, a full record must be made. Offers of proof on a separate record are mandatory.

BASIC COURTROOM PROCEDURES

It is virtually impossible to construct a video record after the fact. Is the video equipment turned on? Are the tapes fresh? Are the court personnel actively monitoring the recording?

Get to know the court reporter. Friendly communications enhance the likelihood of transcript being available for appellate purposes. Ask about the preferred method for referring to exhibits; when and under what circumstances daily transcripts can be ordered; and whether opposing counsel has requested transcripts of any witnesses on any day or because of a particular event in the courtroom. Confirm that the court reporter will assist in ordering transcripts as quickly as possible should you need them during the trial.

If opposing counsel has ordered a transcript, make sure the typed record appears in subsequent examinations of other witnesses or becomes a visual aid during closing arguments. Provide the judge with a courtesy copy of any transcripts obtained during trial, including those ordered by your opposition.

If the reporter employed by the court is unreliable, get permission for a private service to maintain a non-secret “shadow” record. Find out the lead time for transcript preparation by an outside provider.

MOTION TRANSCRIPTS FOR TRIAL PREPARATION AND PRESENTATION

Transcripts are useful. They permit counsel to track arguments that have been made successfully or unsuccessfully and allow for amendment of future presentations.

Order every transcript from every formal motion argued on any significant aspect of discovery and case preparation. Active judges balance a significant caseload and cannot be expected to retain the subtleties and nuances of each case. When the trial judge has invested time and preparation for significant motion practice, the court will furnish a detailed recitation of her findings, conclusions, impressions of exhibits, or evidence that has been submitted. Significant events in the life of a case may occur over time; have transcripts available for select sections to be used for re-presentation or assisting the trial judge in recalling determinative oral statements. In your briefs, isolate individual passages that make a difference in your case this — simply attaching the transcript unfairly shifts the burden of reading to the trial judge.

CONTINUOUSLY ACQUIRE TRANSCRIPTS

Frequent transcript acquisition confirms that the video court-reporting system or live courtroom reporter is reliably capturing everything that has been said, with minimal corrections. It also helps manage client expectations regarding the progress of the case or highlights problems that need to be addressed.

Transcripts are helpful for self-education, clarifying issues. They can also confirm that you are using language carefully and precisely and your citations to the record, documents, and exhibits are accurate and preserved. Motion practice transcripts are essential to trial preparation for use of language, specific citations, and analyzing opposing arguments.

CHECK TRANSCRIPTS FOR ACCURACY

Court rules provide a method for determining transcript accuracy and filing errata sheets. A transcript placed in a file drawer without being reviewed is of no use. A delayed errata sheet is subject to challenges.²

WHO IS IN THE COURTROOM?

Know who is in the courtroom and determine when it is appropriate to make a record. We all are subject to outside influences, and the identity of a newly substituted counsel for one of the parties, the presence of local counsel, significant community spectators, and client representatives may impact the trial judge, generate adverse and/or beneficial publicity, affect sequencing events, and sway public opinion. The presence of people who have the potential for undue influence on the court should be addressed on the record with argument clarifying why the judge may find it necessary to reaffirm neutrality and independence.³

JURY INSTRUCTION CONFERENCES

Jury instruction conferences may take place in chambers or on an abbreviated record. Preserve all decisions regarding jury instructions in a cogent manner that permits appellate review. Make sure that instructions to which you have lodged objections have been preserved with precise indications of alternative language submitted for consideration by the court. Even when the judge furnishes the jury with written instructions, there is potential for instructional error when the written transcript does not correlate or is incomplete.⁴

FRCP RULE 50 MOTIONS IN STATE COURT

FRCP 50(a) requires precision and completeness in presenting the specific factual and legal basis for a decision in your client’s favor. A motion for judgment as a matter of law under FRCP 50(a) “must specify the judgment sought and the law and facts that entitle the movant to the judgment.” The motion must be sufficiently specific to put the court and counsel on notice regarding the issues that have been raised. The question is whether the motion alerts the opposing party about the nature of the defect so it can try to remedy it, if possible, while the record is open.

The scope of the Rule 50(a) motion limits any Rule 50(b) renewal motion for a new trial after the verdict. This limitation furthers an important objective of the Rule 50 structure — ensuring that defects and the party’s proof are discovered while the trial is ongoing, giving the party the opportunity to supply the missing proof if it is available. Determining that a Rule 50(a) motion was insufficiently described in scope, applicable law, and applicable facts can be fatal to a Rule 50(b) motion.⁵

Do not allow motion practice seeking directed verdict to be truncated or perfunctory. MCR 2.516 requires a detailed statement supporting a potential directed verdict. Simply saying that a directed verdict motion has been requested is not adequate.⁶

OBTAIN APPELLATE COUNSEL EARLY AND OFTEN

It is important to seek qualified appellate lawyers to assist in framing the issues in any case, dealing with events that occur during trial, preparing for jury instructions, and helping with unpredictable events. Since jury instruction can be fertile ground for reversible error, the help of a qualified appellate lawyer in managing non-conforming jury instructions, alternative jury instructions, and fill-in-the-blank sections of the standard jury instructions can eliminate post-trial headaches.⁷

PROTECT YOURSELF WHEN NECESSARY

Circumstances in some trials make it important to ensure that the record accurately reflects events that may jeopardize the relationship between attorney and client. A court reporter may be inappropriate for preserving a record involving communications between attorney and client. To preserve a record, I’ve found that an independent court reporter service provider is far better than an audio recording.⁸

DEPOSITION TRANSCRIPTS AS THE RECORD FOR SUMMARY DISPOSITION

Summary disposition motions have been filed by one side or the other — or both — in most of the cases I’ve encountered.⁹ Deposition transcripts may be the court’s only opportunity to evaluate witnesses cited for testimony in presentation of summary disposition motion.

Trial lawyers cannot be complacent during discovery depositions. Documents exchanged in discovery are not self-authenticating and should not be treated as such. Placing a Bates stamp number on a document does not make it authentic nor admissible. Silence may render unsubstantiated records irreversibly authentic.¹⁰

REREAD MRPC 3.4 AND MRPC 4.1

According to MRPC 3.4 – Fairness to Opposing Party and Counsel,

“A lawyer shall not:

(e) … assert personal knowledge of facts in issue except when testifying as a witness.”

MRPC 4.1 – Truthfulness in Statements to Others, in pertinent part, states,

“In the course of representing a client, a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person;”

Do not permit cross examination of a witness at deposition that suggests the validity of a document or an evidentiary claim while opposing counsel interjects personal knowledge of facts and circumstances of a witness or an exhibit. Make timely objections. A response brief on summary disposition may be too little, too late or deemed to have been waived.^11,12,13

The record from witness depositions is more important than ever. You will encounter lawyers who refuse to acknowledge an objection, do not respect objections, and do not respect civility of conduct. I recommend having handy a copy of the ICLE shorthand outline for objections. Seek protective orders. Make a contemporaneous, non-concealed tape recording.¹⁴

CONCLUSION

The record you make in courtroom proceedings is the record you and your client must live with for the life of the litigation. Be attentive, cautious, and avoid complacency. Attention to these details can, and does, make a significant difference in successful representation.

“Best Practices” is a regular column of the Michigan Bar Journal, edited by Gerard V. Mantese and Theresamarie Mantese for the Michigan Bar Journal Committee. To contribute an article, contact Mr. Mantese at gmantese@manteselaw.com.

ENDNOTES

Elliott Dunlap Smith as quoted by Brown, Legal Autopsy, 39 J Am Judicature Society 47, 47 (1955).
MCR 2.306(4), MCR 2.308(C)(1), and MCR 2.308(4). There are circuit courts in Michigan that use independent transcription services to review video and prepare transcripts. I have had the unfortunate experience of realizing after the trial transcript was prepared that more than 50% of the jury instruction presentation was missing. Written jury instructions had been delivered to the jury, but the trial court tried to avoid the verbatim reading of the instructions in favor of personalizing and colloquializing the written word. The appeal was a challenge predicated on the court’s misuse of those ad-lib modifications. Reconstructing the record to create an acceptable transcript that both sides agreed upon took months.
MRE 615 (the court may order exclusion of witnesses on request or on its own motion except parties, representatives, and persons whose presence is essential). In a legal malpractice action, the only spectator in the courtroom for oral argument on a summary disposition proceeding was subsequently identified as a former partner of the defendant lawyer and the campaign manager for the sitting judge. The judge should have recused herself; it was my job to recognize the significance of the lone appearance the campaign manager/former partner. The Court of Appeals promptly reversed on the merits; the trial judge recused herself on remand. MRE 105, evidence may be received for a limited purpose and the jury instructed accordingly. MRE 201, judicial notice of an adjudicative fact, once recognized by the court, is enforceable but must be repeated in jury instructions.
MRE 105, MRE 201, and MRE 411 (evidence of insurance is not admissible to prove liability, but may be admissible for other purposes (i.e., agency, control, or bias) with appropriate limiting instruction).
Gensler, Federal Rules of Civil Procedure Rules and Commentary (Eagan: Thomson Reuters, 2021), pp 11-14.
“Preservation of an issue requires specific, contemporaneous objection. To preserve an evidentiary issue for [appellate] review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal,” People v Aldrich, 246 Mich App 101, 113; 633 NW2d 376 (2001) and MRE 103(a)(1). See also Fershtman, An Important Litigation Tool: A Motion for Directed Verdict, 92 Mich B J 48 (2013).
I have been saved from myself on more than one occasion by appellate specialist James G. Gross and my long-term associate, Patricia Porter.
During trial in Wayne County Circuit Court defending a surgeon, the defendant used a racial slur to describe the qualifications of his medical residents. Every person in the multiracial jury and every lawyer in the room winced. The doctor was more arrogant than justified by his accomplishments and was more insensitive than he was arrogant. The insurance company was willing to settle within limits. The insurance policy permitted the insured to refuse settlement negotiations. He did. On the day of the incident and before the jury retired for deliberation, I made a record with a court reporter in an attorney-client conference attended by appellate counsel to preserve the recommendation that the defendant permit the insurance company to settle the case. Preserving this record quickly terminated post-verdict inquiries into legal malpractice claims against trial counsel.
Anecdotal experience of the author, who has managed thousands of cases and tried more than 120 cases to verdict and judgment in multiple jurisdictions. MCR 2.116(C) (10) motion for summary disposition filings were rarely filed between 1977-1980 in my personal experience; now they are commonplace and filed by both plaintiffs and defendants. A civil case that progresses to trial without a summary disposition pretrial presentation is a rarity.
MRE 901 (authentication as a condition precedent to admissibility requires evidence sufficient to support finding that the matter in question is what its proponent claims) and MRE 1003 (duplicates are admissible unless a genuine question of authenticity exists or its use would be unfair).
MCR 2.306(D)(2) (impeding or obstructing deposition may be sanctionable), MCR 2.306(D)(1) (authorizes request for contemporaneous court intervention), MCR 2.306 (D)(3) (permits suspension of a deposition pending request for court protective orders or court rulings and instructions), and MCR 2.308(C)(3)(b)-(d) (review of objections made during proceedings, transcript irregularities, and similar problems to be addressed by the trial court if the transcript is to be used at trial; caution re: waived if not “seasonably” raised).
“A question which assumes the existence of a fact which has not been proven is objectionable,” People v Pollard, 33 Mich App 114, 118; 189 NW2d 855 (1971).
In addition to a current copy of the Michigan Court Rules, the author carries the publication Carlson et al, Michigan Rules of Evidence and Trial Objections at a Glance (Ann Arbor: ICLE, 2019).
City of Grand Rapids v HR Terryberry Co, 122 Mich App 750, 758; 333 NW2d 123 (1983) (counsel reads news article during closing; waiver due to late filing of objection) and MCR 2.308(C)(3)(b), MCR 2.308(C)(4)-(5), and MCR 2.306(C)(2)(b).

Lawrence J. Acker is a civil litigator specializing in professional liability matters involving legal malpractice including ethical concerns and conflict of interest. He also handles accounting malpractice and medical malpractice and selected personal injury cases. Acker is a fellow of the American College of Trial Lawyers and recently served a two-year term as chairman of the ACTL Michigan State Fellows.