It’s been a busy first few weeks of summer: the Supreme Court issued a new opinion, and the Virginia State Bar had its annual meeting in Virginia Beach. While I haven’t yet recovered from sharing a hotel room with my two wild little boys, we have lots to talk about.

First things first—Harris v. Joplin. A central issue was a liability release and its contents. Unfortunately, a legible version of the signed release at issue was never admitted into evidence. I’m not going to get into the merits here, except to note that the opinion provides a good refresher for when the parol evidence rule applies (and when it doesn’t!).

We don’t know why a legible version of a critical document did not make its way to court . . . . was it a printer malfunction that no one realized until they were in court? Was it a scanning issue? A technical glitch? Had the litigants known this would make its way to the SCV, things might have played out a bit differently.

Harris v. Joplin was the inspiration for the theme of this post, which is to always think about your record. As a former trial attorney, I know how hard it is to get everything right. As a matter of fact, it is impossible. But if you approach your cases by thinking about what the paper record will show, you will save yourself some frustration and heartache later on. 

Today, we are going to talk about some record issues that have come up recently:

  ♦  When you file your transcripts in the Circuit Court to get ready for an appeal, file only the single-page-view version (not the condensed version that has four pages in one).

  ♦  It is wonderful when both sides agree that certain evidence is admitted—but be wary of simply passing a binder to a judge. Even when there is no dispute about the binder’s contents at trial, you must be certain that each exhibit is marked admitted and included in the record. I’ve had cases where binders of evidence were stuck in a file and not logged or scanned properly because they were not marked as exhibits in court (although the record otherwise reflected that they were admitted and they were used by the judge to write a letter opinion). A clerk in a rural office told me recently that sometimes a clerk doesn’t sit in during hearings and I was amazed. It makes sense (in a very scary way) that a clerk might not know what to make of your valuable evidence in this scenario. Be sure at the end of your case that all of your exhibits end up where they are supposed to be!

  ♦  Consider a petition for writ of certiorari, if needed, when you know an exhibit was made a part of the record but was not transmitted to the appellate courts.

  ♦  Here’s a hypothetical to illustrate a point: Two parties argue a motion in limine about certain evidence and one side prevails. The issue comes up again at trial and the judge rules again on the record. Is it okay to simply file the transcripts from trial? Nope. If you want to argue the issue that was raised in the motion in limine, you need to include the transcript from the motions date, too. A colleague of mine used to say that appellate judges are “curious cats” and like to see exactly what happens and when.

  ♦  Don’t forget the court reporter. Appellate lawyers are fond of saying that if it is important enough to go to court over, it is important enough to get a court reporter for. 

  ♦  Did you have a sidebar with a judge during a jury trial? Presumably, you and opposing counsel did this so as not to let the jury hear what you were discussing. But did your court reporter hear? And, even if they did, did the court reporter transcribe your meeting? Make sure they do.

  ♦  Did you play an audio recording during trial? Ensure your court reporter transcribes the audio if the audio itself wasn’t separately admitted. And even if it was admitted, does the record show which portions were played at any given moment? Sometimes court reporters have a hard time hearing or keeping up (and some are more experienced than others with how to handle these situations). Remember that our curious cats* can only do what you want on appeal if they have the same information you do.

*I asked Chat GPT to come up with alternatives to “curious cat” to describe our favorite jurists. Suggestions included: “knows just enough to be delightfully dangerous,” and “part-time detective, full-time question asker.” Sometimes AI is so good, it’s scary 😉

As always, have a question about making your record? Give me a call. I love all things appeals and it makes my day to know that you read these.

Now back to work—