Every “baby” litigator is taught, or at least should be taught, early in their career,
to “preserve the record” in case there is an appeal. This is because appellate review—
absent extraordinary circumstances such as the very rarely found “fundamental error”—
is limited to issues raised in the trial court through objection, motion or, in some cases,
offers of proof. Making and preserving the record sounds easy. The number of reported
appellate cases, however, that rejects claimed facts and arguments that are “not supported
by the record” or “waived” suggests otherwise.
Documents only become part of the record when they are filed with the trial court.
Even experienced counsel often forget that discovery documents like disclosure
statements, responses to interrogatories, requests for production and requests for
admission are not part of the record unless all or the relevant part of those documents are
filed with the court (usually as an attachment to a motion). Failure to do so will preclude the
lawyer from using these documents as a shield or sword in an appeal.
More troubling are the easily avoidable “gaps” that so often occur in the record
regarding oral statements by the parties, lawyers and witnesses. These only become part
of the record when they are recorded by a court reporter or the court’s electronic
recording system (if any). Each judge of the superior court is required to appoint a court
reporter. Before entering upon his duties, the court reporter takes and subscribes the
official oath. A.R.S. §12-233 requires the court reporter to attend court during the hearing
of all matters before it unless excused by the judge. That statute, oddly, continues to
require the court reporter to make stenographic notes of all oral proceedings before the
court, but not arguments to the jury or judge unless requested by the court or counsel. It is
not reversible error for a court reporter to not transcribe counsel’s arguments when
neither the court nor counsel requests such.
The “court reporter option” is often where attorneys fail to make the record.
Attorneys, usually to appease the judge, will often not request or insist on a court reporter
when they should. Bench conferences used to be the most common area of unrecorded
court statements. The Arizona Supreme Court specifically disapproved of this practice.
Therefore, lawyers should be aware of, and insist on, all bench conferences being recorded
to allow for adequate consideration of any assigned errors. At worst, attorneys should be
sure to make an after-the-fact record of each unrecorded conference.
The increased use of depositions at trial has created another record trap. Some
court reporters, unless requested, will not transcribe such information. The record should
indicate exactly what deposition portions were presented to the jury. Without the
substance of that testimony being placed in the record, the record is useless. This can be
fatal if, for example, the missing testimony provided the foundation for a requested jury
instruction. If the lawyer is uncomfortable in asking the court reporter to actually
transcribe the presented deposition portions, he or she should at least have the court
reporter transcribe the pages and lines of such testimony presented, and then make those
documents or videos filed with the court so they are formally part of the record.
Finally, though jury instructions are the most fertile area for reversible appellate
error, they are often settled outside the presence of a court reporter. It is a common
practice in both civil and criminal litigation for counsel and the court at various points
during the case to informally discuss proposed jury instructions. However, when the
negotiation and preliminary indications have ceased and the trial judge makes known
which of the tendered instructions will and will not be given, informality must be
abandoned. At this point, before the case is argued and before the jury is instructed, a full
record on the instruction should be made. The trial judge should make clear his ruling and
the instructions he intends to give and the parties should state their objections to the
judge’s position on the instructions.
Ultimately, counsel should not leave themselves on appeal arguing about who
argued and said what and when. The Tri-pellate lawyer leaves no part of the trial court
record either to inference or the imagination. To avoid exposure to a painful and
often legally fatal word an attorney should never want to have applied to them: Waiver.
