Michael Rikon recently co-authored an article published in the Practical Real Estate Lawyer with James D. Masterman. The article is titled “Rearranging the Deck Chairs When the Ship is Going Down: Protecting Your Condemnation Record for Appeal” and is available online by clicking here.
The article offers practical insight, tips, and guidelines for how best to preserve the record for a possible appeal. Although many practitioners may feel confident during a trial that things are going their way, the authors point out that in almost every case there may be an error warranting an appeal; thus “the best practice is to assume that every case will be appealed and, therefore, that the record at trial must be protected.”
When an appeal rises, all that is left is the record; making it a vitally important piece of evidence in every case. Mr. Masterman and Mr. Rikon divide the article into two categories: practices designed “to ensure that necessary information becomes part of the trial court record, and a collection of areas where attorneys must take additional steps to preserve an evidentiary issue when faced with a contrary ruling by the court.” Below we offer a summary of the article:
The transcript: The transcript is the most important part of the appellate record. Thus, it’s important to make sure the court reporter takes down everything; any substantive discussion or argument must take place on the record. Second, it is beneficial to provide the court reporter with a glossary of terms prior to the start of trial to prevent misspellings and confusion. Finally, make sure to get the reporter’s contact information right away.
Protecting the Record: It’s imperative, according to the authors, that arguments, decisions, and important information are included in the written record of the case. This includes challenges and objections, and the court’s rulings thereon. When making an objection or challenge to evidence offered, be sure to clearly state the reason therefor, even if you think it will be obvious to the appellate court.
Rulings by the Court: Do not move on from any objection or discussion until the judge has ruled on the application. Don’t be afraid to ask for a clarification if necessary. As the article points out: if you do not understand what the judge’s ruling was, it’s very likely the appellate court will not either.
Statements and Actions by Witnesses or Others: It’s critical that any nonverbal actions or cues be included on the record. A helpful phrase may be, “Let the record show…”
Expert Qualifications: Often times opposing counsel will offer to stipulate to a witness’s qualifications in order to speed up things at trial. While this “gracious” offer may be tempting, the authors caution against breezing over this area in the context of condemnation trials, which are expert witness heavy. Be sure to, at least, get the educational background, professional designations, professional experience, and prior judicial experience of your witness on the record before moving on.
Completing the Record Before Moving on: When the court rules against you, often an additional step is necessary to protect the record. An Offer of Proof is often utilized to detail what evidence would have been offered if the witness had been permitted to testify. Additionally, if the court doesn’t allow an exhibit into evidence, mark it for identification and state on the record how the exclusion is prejudicial.
Motions in Limine: Often, these mechanisms are used to “head off an evidentiary issue” that is likely to arise at trial and that could cause significant prejudice if not addressed in advance. This vehicle is often used to exclude evidence of contamination or a recent purchase price at trial. However, pay careful attention to the laws of your jurisdiction as some require that the objection be renewed at trial in order to preserve it on appeal.
Following these few tips will greatly ease the stress of an appeal. Should one occur in your case, you will be glad you followed the guidance and insight offered the authors.
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