Appellate Briefs - January 2013: Making A Record of Bad Conduct for Appeal

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Making A Record of Bad Conduct for Appeal
One question that arises with some frequency is how to make a record of non-verbal conduct. Younger trial lawyers often lament about the tone or volume of voice, the gestures or the other non-verbal antics of opposing counsel that may have affected the outcome of a particular effort, be it a deposition, a hearing, or even a trial. But of course, absent quick thinking at the time, such matters do not appear in the cold transcript or record and therefore cannot be used on appeal. The answer requires the recipient of such conduct to remember to make a record by verbalizing what is occurring, to say for the sake of the transcript something that memorializes the conduct. For example, if opposing counsel is raising his voice and making angry faces at an unfavorable witness, the defending lawyer should note that by calling on opposing counsel to stop raising his voice and making angry faces.  Rarely, if ever, will such matters amount to reversible error, but having that conduct reflected in the record helps the appellate court understand the atmosphere and flavor of what occurred below. Here's hoping you never have to deal with such bad behavior.
Another FAQ Coming Soon
We have received great feedback to the Frequently Asked Questions series introduced several months ago. Do you have a question you'd like to ask an appellate attorney? Email Marie and look for it in future issues of Appellate Briefs.
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Marie Tomassi Marie Tomassi is Florida Bar Board Certified in Appellate Practice. She has been an attorney with Trenam Kemker since 1988 and serves on the firm's three person Management Committee. She can be reached at mtomassi@trenam.com or 727-820-3952.

 

Topics:  Appeals, Transcripts

Published In: Professional Practice Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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